BVA9506484
DOCKET NO. 91-45 201 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to service connection for chronic bilateral knee
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Alan S. Peevy, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1947 to
January 1950.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a December 1989 rating decision by the St. Paul,
Minnesota, Regional Office (RO). The veteran was notified of
this determination and provided notice of appellate rights and
procedures by letter dated December 19, 1989. A notice of
disagreement was timely received on December 21, 1990. 38 C.F.R.
§ 20.305(a) (1994). A statement of the case was issued in
February 1991, and the veteran's substantive appeal was received
in March 1991. The veteran testified at a personal hearing at
the RO in May 1991.
By decision dated in March 1992, the Board denied the veteran's
appeal, and the veteran subsequently appealed to the United
States Court of Veterans Appeals (Court). By Order dated April
29, 1993, the Court vacated the Board's March 1992 decision and
remanded the case to the Board for further development.
[citation redacted]. The Court
did not retain jurisdiction of the case.
In January 1994, the Board remanded the case to the RO for
further development of the record. Supplemental statements of
the case were issued in September 1994 and January 1995, and the
case is now again before the Board for appellate review. The
veteran continues to be represented by the Disabled American
Veterans.
During the course of the present appeal, the veteran filed a
claim for entitlement to service connection for left foot drop,
back disability, stomach disability, neck pain and headaches as
secondary to his claimed bilateral knee disability. By rating
decision dated in September 1994, the RO deferred consideration
of these additional issues pending a Board decision on the
veteran's appeal bases on his claim for entitlement to service
connection for bilateral knee disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend that the veteran
suffers from chronic bilateral knee disability which is related
to injuries suffered during the veteran's period of active
military service. Specifically, the veteran maintains that he
injured both knees while serving in Germany in 1948. He asserts
that while he was helping to load planes with food items during
the Berlin airlift, a "pallet" on which sacks of food were piled
collapsed into the back of both of his knees. The veteran
reports that he was treated at a military medical facility where
leg length casts were placed on both lower extremities. He
contends that he was placed on light duty after the casts were
removed and that he has suffered knee problems ever since.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is for entitlement
to service connection for bilateral knee disability.
FINDINGS OF FACT
1. The veteran suffered bilateral knee injuries in 1948 during
active military service.
2. The veteran currently suffers from chronic bilateral knee
disability related to the 1948 inservice injuries.
CONCLUSION OF LAW
Chronic bilateral knee disability was incurred in the veteran's
active military service. 38 U.S.C.A.. §§ 1131, 5107(b) (West
1991); 38 C.F.R. § 3.303 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Pursuant to the Board's January 1994 remand, additional
development of the evidence was accomplished by the RO, including
obtaining Social Security records as well as additional private
medical reports pertinent to his claim. The Board notes that one
private medical care provider, a Dr. John Kelly, who the veteran
has identified as first treating him immediately after service,
is reportedly deceased. The veteran has indicated that none of
Dr. Kelly's records are available. Under the circumstances, the
Board believes that the statutory duty to assist the veteran with
the development of the evidence in connection with his claim has
been met and that no additional action is necessary under the
facts of this case. 38 U.S.C.A. § 5107(b) (West 1991).
Applicable law provides that service connection will be granted
if the evidence establishes that a particular disease or injury
resulting in disability was incurred in service. 38 U.S.C.A.
§ 1131 (West 1991); 38 C.F.R. § 3.303(a) (1994). If there is no
showing of a resulting chronic condition during service, then a
showing of continuity of symptomatology after service is required
to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1994).
Certain chronic disabilities, such as arthritis, will be presumed
to be related to service if manifested to a compensable degree
within one year of discharge from service. 38 U.S.C.A. §§ 1101,
1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994).
Service connection may also be granted for a disease first
diagnosed after service when all of the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 C.F.R. § 3.303(d) (1994). Moreover, presumptive
periods are not intended to limit service connection to diseases
so diagnosed when the evidence warrants direct service
connection. 38 C.F.R. § 3.303(d) (1994).
The initial question before the Board is whether the veteran did
in fact suffer the claimed bilateral knee injuries during
service. Unfortunately, it appears that the veteran's service
medical records were destroyed during the 1973 fire at the
National Personnel Records Center. Attempts to verify the
claimed injuries and inservice hospitalization have not been
successful. However, at the May 1991 RO hearing, the veteran
testified under oath that he was placed in leg casts for several
weeks as a result of a 1948 accident which occurred while loading
food items as part of the Berlin airlift. The Board notes here
that at another hearing conducted in 1989 in connection with an
unrelated Social Security claim, the veteran testified that he
injured his knees after climbing a "log type thing" during
training after "the log thing broke." While this may at first
glance suggest some discrepancy in the veteran's account of the
details of the claimed injuries, both versions of the veteran's
story include mention of the fact that another serviceman broke
his back as well as the fact that the veteran was placed in leg
casts for several weeks. After carefully considering the
testimony offered at both hearings, the Board believes that the
most reasonable explanation is that the veteran simply used
different words to describe what the Board assumes were wooden
loading platforms or flats used for moving or storing cargo or
freight.
Other evidence in support of the veteran's claim includes
statements from siblings and life-long friends to the collective
effect that the veteran returned from service with knee problems
and has suffered knee problems ever since. Also of record is a
statement from a serviceman who recalls the veteran telling him
in 1949 about his knee problems during service. While noting
that these statements are essentially from family members and
life-long friends, the Board believes that they nevertheless lend
some support to the veteran's testimony regarding the inservice
accident. Accordingly, the Board finds that the veteran did
suffer bilateral knee injuries during his period of active
military service.
As noted earlier in this decision, that an injury occurred in
service does not per se warrant a finding of entitlement to
service connection. The inservice injury must result in
disability. 38 C.F.R. § 3.303(a) (1994). When the fact of
chronicity in service is not adequately supported, then a showing
of continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1994). Since there are no service medical
records to review for purposes of determining whether the
veteran's knee injuries resulted in chronic disability in
service, the Board must therefore determine whether the evidence
otherwise demonstrates a continuity of symptomatology after
discharge if service connection is to be established.
The most significant item of evidence supporting such a finding
of chronicity is a March 1993 statement from Robert T. Peterson,
M.D. to the effect that he was the veteran's family physician for
many years and that the veteran came to him with a history of
knee injury while in the service. Dr. Peterson further reported
that he saw the veteran "on numerous occasions when he was
diagnosed to have bilateral knee pain and discomfort with
occasional mild joint effusion." Dr. Peterson also indicated
that "x-rays were positive at that time for early degenerative
disease" in both knees and that the veteran was "treated
symptomatically with Indocin and Librium." He concluded with the
comment that his diagnosis was traumatic degenerative bilateral
knee disease with resultant mild joint effusion and early
osteoarthritis.
Unfortunately, Dr. Peterson's March 1993 letter does not provide
any dates of treatment. The record contains copies of certain of
Dr. Peterson's clinical treatment records pertinent to the
veteran beginning in 1957, and the veteran has reported that he
began seeing Dr. Peterson in 1957 and that before 1957 he was
being treated by a Dr. Kelly who, as already noted, is deceased.
However, a review of Dr. Peterson's clinical treatment records
shows that Librium was first prescribed for the veteran in the
early 1970's and the exact cause for this medication is not
clearly documented. Other entries dated in the 1970's mention
elbow pain and back pain, but do not refer to any knee complaints
or clinical findings. In fact, the first medical entry by Dr.
Peterson pertinent to the veteran's knees is dated in November
1982. Other private medical reports of record dated from the
late 1980's on show bilateral knee disability diagnosed on at
least one occasion as gouty arthritis.
The Board's January 1994 remand included directions for a
Department of Veteran's Affairs (VA) examination to determine the
nature, extent and etiology of the veteran's bilateral knee
disability. The veteran underwent such an examination in June
1994. In the subjective history part of the examination report,
the examiner noted the 1948 inservice injuries to the knees. The
examiner then proceeded to report that the veteran was seen by
Dr. Peterson in 1953. The VA examiner further noted that Dr.
Peterson had reported in a recent letter that "in 1953 the
patient had an effusion and degenerative arthritis" with an
"ultimate diagnosis of traumatic degenerative bilateral knee
disease."
Objective clinical examination showed that the veteran had a
slight limp with a list to the right. An obvious bony deformity
of both knees was reported along with some limitation of motion
and complaints of pain. Radiological study of the knees was
interpreted as showing moderate to severe degenerative joint
disease bilaterally with findings most marked in the
patellofemoral joints. The examiner indicated that the nature of
the veteran's disability as being traumatic degenerative
bilateral knee disease documented as early as 1953 and its
progressive nature over the years seemed to correlate the 1948
injury to the veteran's current knee problems. The examination
diagnosis was status post trauma to both knees in 1948 followed
by post-traumatic degenerative disease bilateral with chronic
pain, recurrent falls and recurrent effusions.
It is apparent from a review of Dr. Peterson's March 1993 letter
and available clinical records documenting his treatment of the
veteran that some discrepancies exist with regard to dates of
treatment as well as the reasons for treatment. Moreover, it
appears that the examiner who conducted the June 1993 VA
examination misread Dr. Peterson's letter as far as citing a date
of first treatment. However, in the Board's view, the
significance of Dr. Peterson's March 1993 letter is the fact that
he diagnosed traumatic bilateral degenerative knee disease which
he specifically related to the inservice knee injuries.
Unfortunately, under the facts of this case there are no service
medical records available, nor are any records available from the
private physician who reportedly treated the veteran immediately
after service. However, given the veteran's sworn testimony and
the various lay witness statements which not only refer to an
inservice injury, but also cite the veteran's continuing knee
problems after service, the Board believes that Dr. Peterson's
March 1993 letter linking the veteran's chronic knee disease to
service must be afforded significant weight. Although this
private physician apparently did not begin providing medical
treatment of any kind to the veteran until 1957, he has
nevertheless furnished his trained medical opinion, based in part
on radiological studies, that a link exists between the veteran's
current bilateral knee disability and the injuries suffered
during service. Moreover, based on a review of the record,
including Dr. Peterson's statement, a VA physician has also
indicated that there appears to be the necessary link to service.
Under the circumstances, the Board finds that a preponderance of
the evidence is for a finding that the veteran's current chronic
bilateral knee disability is related to the inservice knee
injuries.
ORDER
The appeal is granted.
EUGENE A. O'NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.